2004/525/EC:Decision of the European Central Bank of 3 June 2004 concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities detrimental to the European Communities’ financial interests and amending the Conditions of Employment for Staff of the European Central Bank (ECB/2004/11)

• Published date: 12 October 2005
• Subject Matter: Financial provisions,Staff regulations and employment conditions - EC

30.6.2004 EN Official Journal of the European Union L 230/56

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DECISION OF THE EUROPEAN CENTRAL BANK

of 3 June 2004

concerning the terms and conditions for European Anti-Fraud Office investigations of the European Central Bank, in relation to the prevention of fraud, corruption and any other illegal activities detrimental to the European Communities’ financial interests and amending the Conditions of Employment for Staff of the European Central Bank

(ECB/2004/11)

(2004/525/EC)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty establishing the European Community,

Having regard to Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (1), and in particular Article 4(1) and 4(6) thereof,

Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular Article 12.3 and Article 36.1 thereof,

Having regard to the contribution of the General Council of the European Central Bank (ECB) in accordance with the fifth indent of Article 47.2 of the Statute,

Having regard to the opinion of the Staff Committee of the ECB,

Whereas:

(1) Regulation (EC) No 1073/1999 (hereinafter the OLAF Regulation) provides that the European Anti-Fraud Office (hereinafter the Office) is to initiate and conduct administrative fraud investigations (hereinafter internal investigations) within the institutions, bodies, offices and agencies established by or on the basis of the EC and Euratom Treaties for the purpose of fighting fraud, corruption and any other illegal activities detrimental to the European Communities’ financial interests. Pursuant to the OLAF Regulation, internal investigations may concern serious matters relating to the discharge of professional duties such as to constitute a dereliction of the obligations of members of the staff of such institutions, bodies, offices and agencies liable to result in disciplinary or, as the case may be, criminal proceedings, or an equivalent failure to discharge obligations on the part of members of institutions and bodies, heads of offices and agencies or members of the staff of institutions, bodies, offices or agencies not subject to the Staff Regulations of officials and the Conditions of employment of other servants of the European Communities (hereinafter the Staff Regulations).

(2) For the ECB such professional duties and obligations, in particular the obligations relating to professional conduct and professional secrecy, are laid down in (a) the Conditions of Employment for Staff of the European Central Bank, and (b) the European Central Bank Staff Rules, and (c) Annex I to the Conditions of Employment concerning the Conditions of Short-term Employment, and (d) the European Central Bank Rules for Short-term Employment; and further guidance is given in (e) the Code of Conduct of the European Central Bank (2), and (f) the Code of Conduct for the members of the Governing Council (3) (together referred to hereinafter as the ECB conditions of employment).

(3) The OLAF Regulation provides in Article 4(1) that in relation to protecting the European Communities’ financial interests and fighting fraud and any other illegal activities detrimental to the European Communities’ financial interests, the Office ‘shall carry out administrative investigations within the institutions, bodies, offices and agencies’; and in Article 4(6) that each institution, body, office and agency is to adopt a decision which ‘shall in particular include rules concerning: (a) a duty on the part of members, officials and other servants of the institutions and bodies, and managers, officials and servants of offices and agencies, to cooperate with and supply information to the Office’s servants; (b) the procedures to be observed by the Office’s employees when conducting internal investigations and the guarantees of the rights of persons concerned by an internal investigation’. In accordance with Community case-law, the Office may open an investigation only on the basis of sufficiently serious suspicions (4).

(4) The OLAF Regulation provides (second paragraph of Article 4(1)) that internal investigations should be conducted subject to the rules of the Treaties, in particular the Protocol on privileges and immunities of the European Communities, and with due regard for the Staff Regulations. Internal investigations by the Office are also subject to Article 6(2) of the Treaty on European Union and to other principles and fundamental rights common to the Member States and recognised by the Court of Justice, such as, for instance, the confidentiality of legal advice (legal privilege).

(5) Internal investigations are carried out in accordance with the procedures set out in the OLAF Regulation and in decisions adopted by each institution, body, office or agency to implement it. In adopting this implementing decision, it is incumbent on the ECB to justify any restrictions on internal investigations affecting the specific tasks and duties entrusted to the ECB by Articles 105 and 106 of the Treaty. Such restrictions should ensure, on the one hand, the confidentiality necessary for certain ECB information and, on the other hand, implement the legislator’s intention of reinforcing the fight against fraud. Other than for these specific tasks and duties the ECB should be treated, also for the purpose of the present decision, as a public entity similar to other Community institutions and bodies.

(6) In exceptional cases, the circulation outside the ECB of some of the confidential information held by the ECB to perform its tasks could seriously undermine the ECB’s functioning. In such cases, the decision on granting the Office access to information or transmitting information to it will be taken by the Executive Board. Access will be granted to information that is more than one year old in areas such as monetary policy decisions, or operations related to the management

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